Ross Douthat

When Caesarism Is a Choice

By ROSS DOUTHAT

August 6, 2014

I talked a little bit, in my last post, about the argument that anything President Obama might do unilaterally on immigration policy is, if not justified, at least explained by congressional gridlock and particularly by the extraordinary intransigence of the current G.O.P. But I want to say something more about this point, because it’s come up in various responses to my warnings against presidential caesarism — this one from Ezra Klein, for instance, and this one from Jonathan Bernstein. I think Bernstein does a good job of making the case that the president faces an unusual situation with House Republicans, given their incentives and dysfunctions:

[On immigration] it may not be clear exactly where Obama’s authority ends. But it is almost certainly true that he has some legitimate discretion, and that using it may well produce a policy outcome that would be worse for mainstream conservatives than what they could get by cutting a deal in Congress. The same is true on climate, where sweeping new regulations, almost certainly allowed under current law, will produce an outcome Republicans will hate.

In many areas, it’s likely that Democrats would accept a half-victory enshrined in law over a “better” policy result achieved by executive action. … And yet, in policy area after policy area, House Republicans have said, and demonstrated, that they prefer a worse (for them) substantive result as long as they don’t have to vote for it. Avoiding compromise avoids their greatest fear — being labeled “RINOs”– while allowing them to rail against a “lawless” president. As irresponsible as that might be from the point of view of individual House Republicans, the fact is that their party has set up an incentive structure that pushes them in the “post-policy” direction of choosing symbolic wins at the cost of substantive losses.

As a diagnosis of G.O.P. dysfunction I think this is mostly fair: The core “let the policy happen, just don’t make me vote for it” dynamic Bernstein identifies has prevented plausible deals from happening, pushed dealmaking to the last minute, and yes, created incentives for the White House to act unilaterally throughout the current period of divided government.

But where immigration specifically is concerned, this diagnosis downplays presidential agency, and the extent to which this White House has deliberately chosen executive action (and political advantage) over the pursuit of compromise, rather than just being pushed to act by an immovable G.O.P.

Consider, first, that immigration reform was not treated with particular urgency during the four years (under Bush and Obama, both pro-comprehensive reform presidents) when the Democrats controlled both houses of Congress: Pro-labor Democrats joined conservatives in killing the last Bush-era push for a comprehensive legalization (on the theory that a better deal might await), and then the issue was left untouched amid all the activity of Obama’s first two years. It was only in late 2010, during the lame duck weeks, that there was a push on the DREAM Act, which passed the House and failed in the Senate. Then came the budget wars of 2011, which quickly pushed the issue back to the margins of debate.

Then in the spring of 2012, Marco Rubio started working on a variation on the DREAM Act — one that wouldn’t go as far as the bill the White House favored, but seemed to have some chance of passage, not least because the context of a presidential election (and Mitt Romney’s struggles with Hispanic voters) gave Republicans a reason to seek compromise. At which point the White House, in a move that (to quote Ed Kilgore, no conservative) “was universally understood as a preemption” of Rubio’s potential bill, released its own executive order — the precedent for the one being currently considered — legalizing the population in question, which (as the White House no doubt expected) made it politically impossible for Rubio to push forward with legislation that would have effectively just ratified that move.

Now counterfactuals are unknowable: Had the White House not made that highly-calculated move, Rubio’s bill might still have gone nowhere, and the post-2012 immigration debate might have played out in exactly the same way, leaving us with the same present-day gridlock on the issue. But it seems quite likely that if Obama hadn’t decided to pre-empt the G.O.P. the way he did, a version of the DREAM Act would have either passed before the election, or else become the obvious compromise — perhaps even combined with a high-skill immigration expansion, another potential area for dealmaking — that Republicans reached for after their 2012 defeat in order to prove their willingness to do something on the issue. It’s even possible (though somewhat less likely, I concede) that absent that well-poisoning move, a comprehensive bill would have had a better chance in Congress post-2012 as well.

And all of this, I submit, was foreseeable for the White House two years ago: Team Obama obviously supported the deferred-action program on the merits, but also with the awareness that it both took one specific area of compromise off the table and pushed the G.O.P. away from compromise in general. And they clearly thought, and think, that this good for Democrats politically, which is why they see further unilateral action as even more politically advantageous (at least based on the way they’re talking about the current proposal), because the scale would be larger and Republican confusion and ire thereby increased. (As, indeed, it has already been: The debate over the response to the child migrant crisis, for instance, divided House Republicans more deeply and seems more likely to end with outright congressional inaction precisely because House conservatives feel the need to also try to pre-empt what the White House says it wants to do next.)

So yes, in general, Congressional Republicans have strong incentives pushing them away from compromise, and yes, this makes some of President Obama’s actions more explicable (and in some cases more defensible) than they might otherwise be. But on immigration, the White House has itself foreclosed compromise by acting pre-emptively when a modest deal seemed possible, effectively herding Republicans away from any potential middle ground while reaping what the Obama teams sees as substantial political benefits. Which means that what we’re dealing with in this case isn’t just presidential unilateralism as a response to congressional abdication (a real problem in our system, and one I’ve written about myself in other contexts). It’s limited caesarism as a calculated strategy, intended both to divide the opposition and lay the groundwork for more aggressive unilateralism down the road.